This point (see: previous installment “The History of Natural Right”) was put supremely well by Edmund Burke:
The rights of men are in a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balances between differences of good; in compromises sometimes between good and evil, and sometimes, between evil and evil. Political reason is a computing principle: adding, subtracting, multiplying and dividing, morally and not metaphysically or mathematically, true moral denominations.[1]
Burke’s argument is that what he calls “real right” depends upon this priority of the proportionately relational and reciprocal. Thus, he is by no means denying the validity of a modern universal claim right aspect to ius, but on the contrary fully re-inscribing it (beyond the limitations of early-modern scholasticism) within a traditional and essentially Aristotelian (or even Thomistic) horizon. In this spirit he declares that if civil society fulfills human nature, “the advantages for which it is made” (in other words its objective telē) also become man’s “right.” In consequence people have truly a subjective right in general to live by the rule of law properly framed for our advantage; a right to justice between people; “a right to the fruits of their industry and to making that industry fruitful” (here Burke already agrees with later socialists); to inheritance from parents; to education (here agreeing with the French republicans) and finally “to consolation in death” (here, by contrast, the horizon of grace and the integral role of the Church and charity in any just, natural-law abiding state, remains). But these rights are only for Burke effectively absolute as attaching to the “middle of justice” and to overall social aims; they are not absolute, and would only be ineffectively so as attaching to the individual, in such a way that any particular right could not be equitably withdrawn in extraordinary circumstances. For to assert the opposite is to deny the link of right to justice and to ground it in pure individual power, that in the realm of real, effective politics will be but a mask for the power of the state.
And just by reason of his recognition that all circumstances are always unique, never mind the aberrant instance of “exception,” Burke, like Aquinas, thinks that the natural law will be mediated by natural cultural processes of custom and inheritance, including (as for David Hume, earlier) the monarchic and aristocratic guarding of particular familial continuities by the state through the identification of certain powerful familial interests with the general ones. In this way precisely, always particular and somewhat quirky but thereby non-fictional rights are safeguarded through a course of nature still reflecting a “divine government” more like that envisaged like Aquinas, as opposed to that of the political economists or the exponents of the general political will.
This can appear to merely critical thought to suggest a more than dubious naturalization of contingent historical arrangements under the aegis of theology. But Burke’s effectively metacritical point is that merely normative, humanist political theories are unable to account for the mystery of the state’s existence at all, and the seeming naturalness and always pre-given character of human political ordering, for all its artificial variance. By contrast, a political theology of divine governance of culture, besides nature, allows for a more naturalistic dimension to the political. Moreover, this dimension of the mysterious factual instance of the state as such (rather than regular animal association, or else anarchy) cannot truly be ignored by secular, mainly normative political thought. Instead, it is dealt with in a travestied fashion that involves parodied accounts of divine government after all, whether with theories of the heterogenesis of ends or of the occasional republican manifestation of the divinely general will in the miraculous coordination of private desires. But these more immanentist or else more ontologist[2] political theologies, in trying somewhat to deflate political mystery, are also less plausibly naturalistic insofar as they deploy the fiction of an original individualism in order to explain away the always already given character of a ritually and legally regulated social dimension. By contrast Burke, like the later Coleridge after him, is also more realistic and empirical than the advocates of liberal norms insofar as his espoused providentialism and participatory metaphysics of political association does not require him to reduce the mystery of its ontological primacy as far as the human cultural sphere is concerned.
Indeed if Burke does have a fault, it is rather that he preserves too much of a liberal residue. His rights that are to be protected remain at times too arbitrarily established in their past, “traditional” givenness, and too much based on a Lockean dominium of property, in such a way as not sufficiently to consider the equity and therefore the revisability of property distribution. Even (or even especially) Church property is considered by Burke in this light: “When once the commonwealth has established the estates of the church as property, it can, consistently, hear nothing of the more or the less. Too much and too little are treason against property.”[3] This glaring blindspot in relation to at least the economic aspect of distributive justice (in contrast to Aquinas) is linked to an excessive English attachment to common law construed too much in terms of precedent sundered from equity, that proceeds to a considerable degree from a Protestant voluntarism and positivity as to the essence of the legal—which then got projected backwards upon a supposed “Gothick constitution.”[4] Nevertheless, in terms of his powerful sense of the dignity and honorable obligation that attaches to property and prestige, Burke goes some way to transcend this limitation. In like manner, by the time of Reflections, he speaks of the power of ruling as something “which to be legitimate must be according to that eternal immutable law, in which will and reason are the same.”[5] Here, in striking agreement with Aquinas, Burke both insists that the test of the legitimacy of the positive law is its consonance with natural equity and (unlike Suarez) identifies will and reason as coinciding sources of legality in the divine. The reference here, also unconsciously echoing Aquinas, to “the eternal law,” can be linked to the context of this passage which concerns the need for popular, democratic involvement in rule, especially if it occupies “an higher link of the order of delegation,” to be tempered by the religion of grace and charity.[6] For the passage’s still broader context concerns a defense of the national establishment of the Christian Church.
It is within this context that Burke proffers his defense of natural law in a manner that rhetorically insinuates its inseparability from grace, already invoked by Burke in the guise of the spirit of “chivalry” (lacking, as he notes, to pagan antiquity) which tends to advert the need for outright political violence through a tempering of natural instinct by a subtle artifice of contingent custom that also induces bonds of fealty and modes of erotic attachment to the personifications and symbolizations of the social order.[7] One can then suggest that it is grace and the economic operation of the Church that in Burke brings together the universal germs of natural law with the adherence to particular custom and tradition—since this is saved from a mere pragmatic conservatism of established regularity of habit, precisely insofar as it is a participation in the work of providence. To be sure, Burke puts forward the pragmatic argument for having some pattern of order of whatever kind as better than none, but he indicates that the received pattern is more than arbitrary just by insisting that the utility of religion depends upon its being sincerely believed as true, and so—since Burke is one of the sincere believers in Anglican Christianity—upon its indeed actually being true. In a like fashion, “the science of jurisprudence” can be considered “the pride of the human intellect” because it is “the collected reason of the ages, combining the principles of human justice with the infinite variety of human concerns.” Again, as for the Patristic tradition and for Aquinas, there can be no division of true positive law from natural law, but the very heart of this linkage is the providential restoration of true human nature through the work of the Church, whose endorsement by the state, alone ensures the latter’s legitimacy.
Burke makes this argument in the course of his subversion of the liberal (Hobbesian, Lockean, Rousseauian) notion of contract. First of all it is implicitly restored to its Calvinist version as covenant, and then to a more Catholic context of participation which surpasses any priority for the covenant-making individual, or for a merely voluntary relation to a voluntary deity. Only in the light of this double revision can one adequately read one of Burke’s most famous passages:
Society is indeed a contract . . . not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature . . . a partnership in all virtue and in every perfection . . . a partnership not only between those who are living, but between those who are living, those who are dead and those who are to be born. Each contract of each particular state is but a clause in the great primaeval contract of eternal society, linking the lower with the higher natures, connecting the visible and the invisible world, according to a fixed compact sanctioned by the inviolable oath which hold all physical and all moral natures, each in their appointed place.[8]
An indissolvable bond is here claimed to exist between a neoplatonically-tinged great chain of being, extending from dust to the angels, and a horizontal sequence of divinely ordained political states which are “municipal corporations of that universal kingdom.”[9] Through this historical succession the vertical divine government is mediated in time, and it only operates as anarchic, authentic revolutionary rupture under the impulse of dire necessity, “a necessity that is not chosen but chooses,” in the instance of extreme tyranny, under which the French case of the violent overthrow of an already self-reforming monarchy quite clearly does not fall. In this case there was no necessity for anarchic interruption and so anarchy is rather the result of perverse, purely human choice, in abandonment of synergic consort with God. Thus, since in Paris “the law is broken, nature is disobeyed,” the natural law now operates negatively as the outlawing of the rebellious “into the antagonist world of madness, discord, vice, confusion and unavailing sorrow.”[10]
This account of the universal operation of natural law, both as norm and inevitable operation (as for Aquinas), is presented by Burke as the triple conclusion of “the common nature and common relation of men”—of, therefore, a kind of shared social instinct (rather than an isolated, private one); of the pagan wisdom of Cicero, who saw political associations as the finest work of God, and of divine revelation upon which the unlearned “need not be ashamed to rely.”[11] But it is the first, most naturally implanted evidence that also universally suggests the religious dimension of the state. First of all its participatory “connexion with the source and archetype of all perfection,” and secondly the liturgical need for an “oblation of the state itself, as a worthy offering on the high altar of universal praise.” And at this point Burke suggests that the “modest splendour, mild majesty” and “sober pomp” of Anglican worship and ceremonial “in buildings, in musick, in decoration, in speech, in the dignity of persons” is, in its very grace-given particularity, nonetheless the most natural political offering, just because its tempering of magnificence allows it to blend with the natural world and the natural order.[12]
All this can seem both Erastian and reductively naturalizing of Christianity, in an all-too Ciceronian spirit. No doubt there is a little of both in Burke, yet at the same time there are echoes, also, of the legacy of Richard Hooker. The independent material patrimony of the Church is seen as a guarantee of its non-subordination to Crown, Parliament or people and so of the foundation of state in Church, rather than the other way round.[13] And the specificity of Christian oblation is lightly but distinctly sketched in five respects. First, the Church’s shared wealth of “publick ornament” that, in direct contrast to the “luxury of individuals” which humiliates the poor person, tends to elevate his dignity and raise his nature such as to “put him in mind of a state in which the privileges of opulence will cease, when he will be equal by nature, and more than equal by virtue.”[14] Second, the Church’s first material and spiritual concern is to provide for the poor and ignorant multitude in this life, and that is what its endowments first exist for.[15] Third, the Church sustains the voluntary and personal character of such charity (crucial to its character as a supernatural virtue) rather than trying “to attempt to make men mere machines and instruments of a political benevolence.”[16] Fourth, just because its mission is one of charity, the Church also “tries to fill the gloomy void that reigns in minds that have nothing on earth to hope or fear.”[17] Fifth, besides trying to assuage the habitual melancholia of the aristocracy and gentry which might otherwise warp their architectonic guidance of the people, the Church, in keeping with the “ground-work” of “Gothic and monkish education” also seeks to link—through schools, universities and the Grand Tour—their liberal and political education to supernatural knowledge.[18]
While these matters might not seem obviously to belong to the basic concerns of natural law, Burke’s treatment shows that they do belong to its authentic Romantic re-exposition: the test of positive law is natural law; the natural law is only discerned through the unfolding of this historical, customary law; the unity of the two is the providential operation of divine government; in this operation grace consummates nature through an aesthetic tempering, and revelation likewise reason, if nature and reason are to be complete. Given both this integral unity, and the fact that the natural law is as much a matter of God’s governance through states as of the discernment by men of divine norms, it becomes natural to discuss the natural law in terms of a defense of the co-belonging of state with Church and almost, indeed, to fuse the two topics. For Burke’s cogent argument in the very heart of the Reflections is that natural law is exactly at one with Church establishment.
It is also in accord with this perspective that Burke exactly reverses the Grotian construal of ius naturale in terms of ius gentium: now for him the latter must once more be subordinate to the former, newly conceived in Romantic terms of the priority of cultural relations across borders and so, for example, of the essentially shared legal and political patrimony of Europe, despite the divisions into nations and states.[19]
EDITORIAL STATEMENT: This is the fourth installment of a six-part series by John Milbank on natural law and natural right.
[1] Burke, Reflections on the Revolution, 153. The contrast between two sorts of "computation" here, moral or mathematical, parallels the two ways one might read "convenience," as discussed above.
[2] Meaning here the coincidence of the coordination of human wills with the most general structures of the divine mind in its providential dispositions, after Malebranche.
[3] Reflections on the Revolution in France, 203.
[4] See Harold Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: HUP, 2003), 376. This tendency also, as Berman notes, reflects Calvin’s Republican favoring of aristocracy over monarchy. Thus in England the rurally-rooted aristocrats and gentry see themselves as the guardians of positive common law tradition, in opposition to the equity guarded by the more "transcendent and indifferent" monarchy, as enshrined, for example in the Tudor court of Star Chamber.
[5] Reflections on the Revolution, 191.
[6] Reflections on the Revolution, 191-192.
[7] Reflections on the Revolution, 123, 169-172.
[8] Reflections on the Revolution, 195.
[9] Reflections on the Revolution, 195. One thinks of W.B. Yeats here on his fellow Anglo-Irishman: "And haughtier-headed Burke that proved the State a tree,/ That this unconquerable labyrinth of birds, century after century,/ Cast but dead leaves to mathematical equality." (From ‘Blood and the Moon’).
[10] Reflections on the Revolution, 195.
[11] Reflections on the Revolution, 195-196.
[12] Reflections on the Revolution, 196-197.
[13] Reflections on the Revolution, 198, 199-200.
[14] Reflections on the Revolution, 197.
[15] Reflections on the Revolution, 200.
[16] Reflections on the Revolution, 203.
[17] Reflections on the Revolution, 201.
[18] Reflections on the Revolution, 198-199.
[19] Edmund Burke, Letters on a Regicide Peace [Select Works of Edmund Burke, Volume Two] (Indianapolis IL: Liberty Fund, 1999) Second Letter, 180-189. Needless to say, Burke’s political intentions were not in sympathy with those of this publishing house! See also D.P Fidler and J.M. Walsh ed. Empire and Community: Edmund Burke’s Writings and Speeches on International Relations (Boulder CO: Westview,1999).
